Glenpatrick Pty Ltd v Maclean Shire Council

[1989] NSWLEC 191

Land and Environment Court

of New South Wales

CITATION:	Glenpatrick Pty Ltd v Maclean Shire Council [1989] NSWLEC 191
PARTIES:	APPLICANT Glenpatrick Pty Ltd RESPONDENT Maclean Shire Council
FILE NUMBER(S):	10021 of 1989
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act
CASES CITED:	Investments Pty. Ltd. v. Colo Shire Council ((1980) 41 LGRA 270 at 272) ; Warringah Shire Council v. The Minister (Land and Environment Court Unreported 22 March 1988); Tweed Shire Council v. Wintour (Unreported 22 November 1988); McClelland v. Goulburn City Council ((1976) 35 LGRA 1); Pine Rivers Shire Council v Intercontinental Shelf No. 108 Pty. Ltd. ((1983) 51 LGRA 329).; Canterbury Municipal Council v. Moslem Alawy Society Ltd. ((1986-87) 162 CLR 145 at 150).
DATES OF HEARING:
DATE OF JUDGMENT:	05/18/1989
LEGAL REPRESENTATIVES:

JUDGMENT:

HIS HONOUR: On 16 January 1989 the applicant filed an appeal in the Court against the deemed refusal of a development application it had lodged with the Council on 23 November 1988. The application is for the development of a movable home park and associated facilities on Goodwood Island situated 7km upstream of the mouth of the Clarence River, and not far from the township of Iluka.

The application seeks to create 1,100 caravan and movable home sites together with recreation facilities. Originally an airstrip was included in the proposal but this has been deleted. It is agreed by the parties that the development is permissible with consent in the Rural 1(a) zone under the Maclean Interim Development Order No. 1. The development includes the creation of a golf course and other recreational facilities such as tennis courts, a swimming pool, 2 boat launching ramps and a club house. Also involved in the development is the creation of two very large internal lakes both opening into the Clarence River. The shores of these lakes are to be surrounded by movable home sites.

The Council declined to determine the application for two reasons. Firstly, it was concerned as to whether the application was subject to a Direction by the Minister for Planning under s.101 of the Environmental Planning and Assessment Act concerning the reference to him of all canal developments for his determination. Secondly, it believed that the application involved extractive industry which is designated development under the Act and the application was not accompanied by an Environmental Impact Statement.

The parties have asked the Court to determine two preliminary questions on the basis of certain evidence and statements of fact. With some hesitation I agreed to this course because an affirmative answer to either question will lead to the end of these proceedings.

The questions to be determined are as follows:-

"1. Whether the proposed development is designated development as defined in paragraphs (ma) and (n) of Schedule 3 of the Environmental Planning and Assessment Act, 1979?

2. Whether the subject application is an application to carry out development for the purposes of canals or other artificial waterways within the meaning of a direction pursuant to section 101 of the Environmental Planning and Assessment Act, 1979 attached to circular no. 90 dated 15 November 1985?

Is the application subject to the s.101 Direction?

Goodwood Island is low lying and flood prone and the applicant proposes to fill a considerable portion to accommodate the movable home sites. To raise the site above the 1 in 100 year flood line it is proposed to excavate what is described in the application as two "borrow pits". These areas will be dredged to a depth of about 4.5 metres. The two "borrow" areas total around 20 hectares out of an approximately 80 hectare development. The home sites occupy about 40 hectares and the balance comprises recreational areas. The "borrow" areas, which I will describe as lakes will be filled with water by opening them up to the Clarence River. The lake which opens into the north arm of the river will have a 30m wide access channel and the lake on the south eastern side will be open to the River via a channel created by rock walls.

According to the statement of facts the reclamation works to the minimum R.L. will involve:-

"(i) removal and stockpiling top soil;

(ii) dredging for reclamation;

(iii) transportation, setting up and demolition of dredging plants;

(iv) replace and spread top soil;

(v) grassing of total area of mobile home sites."

The amount of material to be removed by the dredging operation is estimated to be approximately 800,000m3.

The Council argues that the creation of the two lakes comes within the s.101 Direction of the Minister because they comprise development for the purposes of canals or other artificial waterways.

The s. 101 Direction is in the following terms:-

"ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

DIRECTION UNDER SECTION 101

I, the Minister for Planning and Environment, considering it expedient in the public interest to do so, having regard to matters of significance for State or regional environmental planning, direct, pursuant to section 101 of the Environmental Planning and Assessment Act 1979, all councils in the State to refer to the Secretary of the Department of Environment and Planning for determination by me all development applications of the kind described in the Schedule.

(File No. 83/10205(z)1)

(Sgd.) Bob Carr

BOB CARR

Minister for Planning

and Environment

Signed at Sydney this 14

day of Nov 1985

S C H E D U L E

All applications, other than applications by public authorities to carry out development for the purposes of canals or other artificial waterways."

The question is whether the subject application is one to carry out development "for the purposes of canals or other artificial waterways".

Counsel for the applicant, Mr. Talbot, submits that the lakes are not intended to be used as a means of travel, and travel is the fundamental element in any relevant definition of waterway or canal. On the other hand Mr. Leahy, on behalf of the respondent Council, argues that the areas to be created by the proposal are clearly artificial waterways and will quite obviously provide attractive areas for boating activities.

Neither the Environmental Planning and Assessment Act nor the Regulation contain a definition of canal or waterway. In my opinion the ordinary meaning of the words should be gleaned. To this end dictionary definitions have been examined for any assistance they may provide. The prime definition of waterway in the Macquarie Dictionary is "a river, canal or other body of water as a route or way of travel or transport". The Macquarie's initial definition of canal is "an artificial waterway for navigation.... etc." The Shorter Oxford English Dictionary relevantly defines waterway as:-

"1. A channel for the escape or passage of water.

3. A route for travel or transport by water."

Some matters may be observed from the known facts. The lakes comprise two very large bodies of water and the edges of them are contiguous to many hundreds of home sites. The two boat ramps are, however, to be located on the river side of the Island and not within the artificially created lakes. Importantly in my estimation both lakes are open to the river. I cannot conceive as a matter of reasonable inference that the lakes will not be used for boating activities. Residents, whose stay may be short or long term, will undoubtedly seek to use the lakes for recreation activities including travel in and out of the accesses to the Clarence River. This is particularly clear when one examines the configuration of home sites around the lakes. In my opinion it cannot be seriously argued that the lakes will not be used as a means of travel.

There is of course no argument that the lakes are to be artificially created. In the light of the above dictionary definitions and my findings, I conclude that the areas in question are artificial waterways. It follows that the application includes the carrying out of development for the purposes of canals or other artificial waterways within the Minister's s.101 Direction.

Therefore, and in accordance with s.101(3) of the Act, the Council as the consent authority shall not determine the application but must refer it to the Secretary of the Department of Planning for determination by the Minister. In doing so the Council must comply with any other relevant requirements of s.101.

Notwithstanding that I answer the s.101 question in the affirmative it is my understanding that the parties ask that I consider the remaining question of whether the application is for designated development under paragraphs (ma) or (n) of Schedule 3 of the Regulation to the Act. It seems to me that I ought do so in case I be wrong on the s.101 issue.

Is the application for designated development?

It is unnecessary for me to repeat the facts, suffice to say that the applicant does not propose to remove any extracted material from the site, nor sell it. Rather the proposal is to use the extractive material to fill and build up the areas of the island where the home sites are to be located.

The Council maintains that the application involves designated development within either paragraph (ma) or (n) of Schedule 3 to the Regulation. Clause 70 of the Regulation declares development described in Schedule 3 as designated development for the purposes of the Act.

Relevantly the Schedule designates:-

"Development either for the undermentioned purposes or development of the undermentioned types:-

....

"(ma) mining, being mining that causes the disturbance of the surface of land, where the total area of the surface of land distributed is greater than 2 hectares, including any such disturbance caused by -

(i) the clearing or excavation of land;

(ii) the placing of tailings, overburden or minerals on the land; or

(iii)the erection or construction of buildings or dams on the land;

(n) extractive industries, being -

(i) the winning of extractive material, not being coal, petroleum, or any mineral within the meaning of the Mining Act, 1973; or

(ii) an industry or undertaking not being a mine, which depends for its operations on the winning of extractive material from the land which it is carried on,

....."

The applicant submits that the operation is not an 'industry' and is therefore not within paragraph (n), or (ma). Alternatively, Mr. Talbot submits that the development is for the sole purpose of carrying out the construction of the movable home park and associated facilities. The excavation of the borrow areas is not for the purpose of the mining of extractive material but is incidental or ancillary to the main purpose.

In C.B. Investments Pty. Ltd. v. Colo Shire Council ((1980) 41 LGRA 270 at 272) Hope J.A. stated:-

"I see no reason why, in a particular case, an activity cannot have such a double character. I do not think that the activities of man upon land are always required to, or always do, fit exclusively into one only of the various categories which planners devise. I do not think that the proposed activities are required so to fit in the present case, and on the assumption I have made that they would constitute a work for the purpose of agriculture, I think that they would fit into more than one category. The other of those categories is the use of the land for the purpose of extractive industry,..."

His Honour then referred to an "alternative approach":-

"An alternative approach to the problem is that the character, extent and other features of an activity may lead to a conclusion of fact that what will be done should not be regarded as the carrying out of a work for some ultimate purpose, but as the use of the land for a purpose the nature of which is to be ascertained by reference to the acts involved in the carrying on of the particular activity. On this view the removal from agricultural land of soil and other material within the definition of "extractive material" may in some cases be regarded as an activity which is subsumed in the agricultural use of the land. An obvious example is the excavation of soil in order to construct the type of dam which is commonly found on agricultural properties. On the other hand the character, extent and other features of activities which involve the removal of extractive materials from agricultural land may be such that, as a matter of fact, and no matter what is to result or to be done when the activities cease, it is

proper to regard them as constituting a use of the land in themselves, not subsumed in any other use of the land, and thus a use for the purposes of extractive industry."

In Warringah Shire Council v. The Minister (Land and Environment Court Unreported 22 March 1988) Hemmings J., after referring to C.B. Investments, said:-

"....I am prepared to assume that they are to be undertaken substantially, if not solely, for the ultimate purpose of improving the lagoon as a recreational area. That also is not necessarily the sole test to determine the matter. The character, extent and other features of the activity should be examined to determine as a matter of fact whether, notwithstanding such ultimate use, it is proper to regard them as a use of the land in themselves, not subsumed in any other use of the land and thus a use for the purpose of an extractive industry;"

Whilst one should heed the cautionary warning of Reynolds J.A. in C.B. Invesments (at p.276) to forbear from instancing examples "for fear of creating embarrassing dicta", a recent decision of the Court in Tweed Shire Council v. Wintour (Unreported 22 November 1988) is worthy of note.

Simply stated the facts in Wintour were that the respondent had a conditional subdivisional approval in relation to flood prone land. One of the conditions of approval required the raising of the level of the land by filling it. The respondent wanted to fill the land by dredging and pumping from adjacent land. He did not propose to dispose of any of the dredged material off his land, nor sell any of it. He wanted to use it to fill his land in order to comply with the condition of subdivisional approval. Holland J. held that "Dredging for fill is an extractive industry", and, "Moreover, an extractive industry is designated development..." (page 6).

With this background of authority I approach the issues raised by the parties.

Firstly, I accept Mr. Talbot's submission that the proposed operation does not come within paragraph (ma) of Schedule 3. It is not mining as therein defined, which is essentially concerned with the winning of minerals under the Mining Act.

Mr. Leahy nevertheless submits that the activity constitutes the winning of extractive materials under paragraph (n)(i). Mr. Talbot counters that the subject activity is not an industry. He submits that 'industry' imports a profit motive which is not present here. To support his argument he cites two cases: McClelland v. Goulburn City Council ((1976) 35 LGRA 1) and Pine Rivers Shire Council v Intercontinental Shelf No. 108 Pty. Ltd. ((1983) 51 LGRA 329).

The former is a rural rating case wherein Rath J. emphasised the general rule that the expression "business or industries" requires a commercial venture organised for profit. However, I derive little assistance from this interpretation bearing in mind the cautionary words of the High Court in Canterbury Municipal Council v. Moslem Alawy Society Ltd. ((1986-87) 162 CLR 145 at 150).

In the Pine Rivers case Connolly J., in the Queensland Supreme Court, was concerned with a different definition of "extractive industry" than that contained in Schedule 3 to the Regulation. Construing the definition before him he expressed the opinion that what was required was an activity "carried on systematically as a commercial venture organised for profit". In coming to this conclusion His Honour directly referred to McClelland v. Goulburn City Council.

In my view the case is distinguishable if only for the reason that the definition with which the Court was concerned stressed the word 'industry'. If it is necessary to choose between the Pine Rivers case and Tweed Shire Council v. Wintour, (which involved no commercial aspect external to the land), I would prefer the conclusion of Holland J. in the latter, dealing as it does with the subject legislation. It is also noted that Connolly J. left open "the question whether in some circumstances a non-profit undertaking may be a business or industry".

In my opinion the proposed activity prima facie falls within paragraph (n) of Schedule 3. In the circumstances it is necessary to consider the applicant's submission that since the extractive material is being used on site solely to fill the land for home sites, it is not development for the purpose of the winning of extractive material but merely incidental or ancillary to the main purpose. It is simply, in Mr. Talbot's submission, part of the development of the movable home park.

Applying the first approach of Hope J.A. in C.B. Investments it is my opinion that the application involves activities with a dual character. One of these is the use of land for the purpose of extractive industry within paragraph (n) of Schedule 3. Hence the application involves designated development under the Act. It is true that questions of fact and degree are involved in determining whether the excavation and filling activity are incidental or ancillary to the main purpose of the development. However, I cannot accept that the excavation by dredging and pumping of 800,000m3 of material covering areas of around 20 hectares and the filling of almost equal areas of land for home sites, can be viewed as merely incidental or ancillary to the main purpose of the application. This is so even if the operation is being undertaken solely for the ultimate purpose of the development (cf. Warringah Shire Council v. The Minister supra).

Utilising the alternative approach of Hope J.A. in C.B. Investments leads me to the same conclusion. In the light of an examination of the character, extent and other features of the activity, should the excavation and filling operation be regarded as subsumed into the ultimate use of the land?

Having regard to the known facts it is patent that the extractive activity is not subsumed into the ultimate use of the land. There are many considerations relating to the character, extent and other features of the activity which compel this conclusion. These include the massive size of the extractive operation which will lead to the creation of 2 very large bodies of water up to 4.5m in depth. The impact of the operation on the surrounding environment must be significant bearing in mind the fact that these artificial waterways are to be opened up to the Clarence River at two points.

Further, the area is contiguous to very extensive wetlands to which State Environmental Planning Policy No. 14 applies. (Indeed, the application originally proposed development within the wetlands). The character and extent of the extractive operations must also impact on the Clarence River itself. It must be borne in mind that this development is a very large one by any yardstick - 1,100 movable home sites are proposed. In my opinion there is scope for significant environmental impacts as a direct result of the extractive operations.

Whilst on one view the extractive operations may be seen as the carrying out of work for the ultimate purpose of establishing a movable home park, they clearly also fall into the category of a use for the purpose of extractive industry. In my opinion it is proper to regard the removal of material from the borrow areas and filling operation as a use of the land in themselves and not subsumed in any other use.

It follows from my findings that the application to the Court is dismissed. Costs are reserved. The exhibits may be returned.